FORMALITIES OF EXECUTION FOR HOLOGRAPHIC (HANDWRITTEN) WILLS & Choice of Law & Codicils

Question 1

Three Issues:

Answer 1

Elements for a valid holograph
Testamentary intent
Dates

Question 2

Elements for a Valid Holograph (2 elements):

Answer 2

1. A holographic Will must be signed by T
2. The material provisions must be in Ts own handwriting

Question 3

A holographic Will must be signed by T

Answer 3

The signature can be anywhere in the will

Question 4

The “material provisions” are:

Answer 4

[a] the gifts made, and
[b] the beneficiaries’ names.

Question 5

Testamentary Intent

Answer 5

In a holographic will, a statement of testamentary intent (“This is my last will”) need not be on the face of the will and in testator’s handwriting.

Question 6

What if testator signs and executes a writing that lists just the names of people and next to each name, an asset that testator owns? Is this a holographic will, or is it just a list?

Answer 6

Extrinsic evidence is admissible to determine testator’s
testamentary intent.

Question 7

What if testator writes a series of letters?
Is this just a series of letters, or is it a holographic will?

Answer 7

The series of letters can constitute one will under
integration.

Again, extrinsic evidence is admissible to ascertain Ts intent

Question 8

What if the testamentary intent (“this is my last will and
testament”) is part of a commercially printed form will?

Answer 8

The California Probate Code expressly states this is not a
problem.

“Any statement of testamentary intent contained in a
holographic will may be set forth either in the testator’s
own handwriting or as part of a commercially printed
form will.”

Question 9

Dates

Answer 9

A date is not required in a holographic Will

Question 10

But lack of a date can create a problem with:

Answer 10

[1] Inconsistent wills; and
[2] Capacity

Question 11

Problem of lack of dates and inconsistent wills:

Answer 11

If an undated holograph is inconsistent with the provisions of another will (either a dated holographic will, a dated witnessed will, or an undated witnessed will), the undated holograph is invalid to the extent of the inconsistency—unless the undated holograph’s time of execution is established to be after the date of execution of the other will.

Question 12

What if there are two undated holographs?

Answer 12

If you can’t establish which one came last, neither holograph is probated to the extent of the inconsistency.

Question 13

Problem of lack of dates and capacity

Answer 13

If a holograph is undated, and if it is established that the
testator lacked testamentary capacity at any time during which the will might have been executed, the holograph is invalid— unless it is established that it was executed at a time when the testator had testamentary capacity.

Question 14

Is testator’s s will deemed valid with respect to the formalities of execution so that it can be admitted into probate in California?

The will can be admitted into probate in California if any one of the following three rules is satisfied:

Answer 14

1. If the will complies with California’s formalities of execution, the will is admitted into probate in California.
2. If the will does not comply with the formalities of execution under California law, but it complies with the formalities of execution of the place where the will was executed, the will is admitted into probate in California. Thus, if the will complies with the formalities of execution under North Carolina law, the will is admitted into probate in California.
3. If the will does not comply with any of the above but it complies with formalities of execution of the place where testator is domiciled at the time of execution, the will is admitted into probate in California. Thus, if the will complied with the formalities of execution under New York law, the will is admitted into probate in California.

Question 15

Summary: The will is admitted into probate in California if the will complies with the formalities of execution of:

Answer 15

1. California Law
2. Law of the place where the Will was executed
3. Law of the place of Ts domicile at the time of execution

Question 16

Defined

Answer 16

A testamentary instrument executed in compliance with the CA probate code which modifies, amends, or revokes a Will

Question 17

Republication

Answer 17

A codicil republishes a will. This means that a codicil causes the will to speak from the date that the codicil is executed on (also called “down-dating”).

Question 18

On the bar exam, republication comes into play in two
scenarios:

Answer 18

[i] pour-over wills and incorporation by reference and

[ii] pretermission problems.

Question 19

On the bar exam, when you have a pretermission problem and a subsequent republication of the will by the codicil, discuss both theories to preclude an omitted child, spouse, or domestic partner from taking under our pretermission laws:

Answer 19

1. the codicil republished the will, and, in the alternative,
2. the codicil itself is a testamentary instrument, thus the birth, marriage, or domestic partnership took place before the codicil (testamentary instrument) was executed, consequently precluding any pretermission attack by the child, spouse, or domestic partner.

Question 20

Revocation of Codicils

Answer 20

1. If testator executes a will, then executes a codicil, and subsequently revokes his codicil, there is a rebuttable presumption that testator intended to revoke only his codicil.
2. On the other hand, if testator executes a will, then executes a codicil, and testator subsequently revokes the will, there is a rebuttable presumption that testator intended to revoke the will and codicil.